PUBLIC MATTERSTATE BAR COURT OF CALIFORNIA

HEARING DEPARTMENT - SAN FRANCISCO

FILED

FEB 18

LOS ANGELI~

In the Matter of

LYNN HUBBARD, III,

Member No. 69773,

A Member of the State Bar.

Case Nos.: 11-O-14081, 13-J-11204,13-O-17118-DFM

DECISION

INTRODUCTION

Respondent Lynn Hubbard, III (Respondent) is charged here with misconduct in three

separate matters. One of the matters involves discipline imposed by another jurisdiction. The

other two matters entail six counts of misconduct, including allegations of willful violations of

Business and Professions Code] section 6068, subdivision (o)(3) (failure to report judicial

sanctions) [two counts]; section 6068, subdivision (d) (seeking to mislead judge); section 6106

(misrepresentations - moral turpitude); section 6068, subdivision (i) (failure to cooperate in

disciplinary investigation); and Rules of Professional Conduct2 rule 1-300(A) (aiding the

unauthorized practice of law). The court finds culpability and recommends discipline as set forth

below.

1 Unless otherwise noted, all future references to section(s) will be to the Business and

Professions Code.2 Unless otherwise noted, all future references to rule(s) will be to the Rules of Professional

Conduct.1 kwiktag ® 183 823 966

PERTINENT PROCEDURAL HISTORY

The Notice of Disciplinary Charges (NDC) in case No. 11-O-14081 was filed by the

State Bar of California on May 15, 2014. A separate NDC, in case No. 13-J-11204, was also

filed on May 15, 2014. On June 16, 2014, Respondent filed his response to these cases.

The NDC in case No. 13-O-17118 was filed on July 11, 2014. On August 4, 2014,

Respondent filed his response to this case.

The above three cases were consolidated by this court on August 25, 2014.

Trial was commenced on September 29, 2014, and ran until October 3, 2014. At that

time, the matter was recessed in response to a request by the State Bar to file an amended NDC

in case No. 13-O-17118, in order to add the count alleging a violation of rule 1-300(A). After a

break in the trial sufficient to allow the parties to prepare for that additional count, the trial was

reconvened and completed on November 10, 2014, followed by a period of post-trial briefing.

The State Bar was represented at trial by Senior Trial Counsel Erica M. Dennings. Respondent

was represented at trial by Samuel C. Bellicini of Fishkin & Slatter, LLP.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The following findings of fact are based on Respondent’s responses to the NDCs, the

stipulation of undisputed facts filed by the parties, and the documentary and testimonial evidence

admitted at trial.

Jurisdiction

Respondent was admitted to the practice of law in California on September 20, 1976, and

has been a member of the State Bar at all relevant times.

Case No. 11-O-14081 (Bhullar Matter)

On April 4, 2011, the United States District Court for the Central District of California

sanctioned Respondent $1,100 for missing a court-ordered scheduling conference on March 2 l,

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2011, in the case entitled Kohler v. Bhullar Investments, LLC. The sanctions order directed the

clerk of the court to notify the State Bar of the sanctions order "per California Business &

Professions Code § 6086.7(a)(3)." Respondent was present when this order was issued.

Respondent, aware of the order but believing that the order directing the court’s clerk to

notify the State Bar of the order satisfied Respondent’s own duty to notify the State Bar, failed to

report the order to the State Bar within the 30-day window to do so. Instead, he notified the

State Bar of the sanction order on June 14, 2011, 71 days after the order had been issued.

Count 1 - Section 6068, subd. (0)(3) [Failure to Report Judicial Sanctions]

Respondent stipulated on the first day of trial, and this court finds, that Respondent’s

failure to report timely the above sanctions order constituted a willful violation by him of section

6068, subdivision (o)(3).

Case No. 13-J-11204 (Plaza Bonita Matter)

This disciplinary proceeding is based on discipline imposed on Respondent by the United

States District Court for the Southern District of California on February 4, 2013. That discipline

included actual suspension of Respondent for one year from the practice of law in that court. As

is discussed in greater detail below, the discipline arose out of an action filed by Respondent in

that court on behalf of his mother, Barbara Hubbard.

Statutory Overview

This proceeding is governed by section 6049.1. Subject to certain exceptions, section

6049.1, subdivision (a), provides, in pertinent part, that a certified copy of a final order by a court

of record of the United States or any state thereof, determining that a member of the State Bar

committed professional misconduct in that jurisdiction, shall be conclusive evidence that the

member is culpable of professional misconduct in this state. After the receipt by this court of

such evidence, the issues in this streamlined proceeding, including the exceptions to the above

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rule, are limited to: (1) whether the prior disciplinary proceeding lacked fundamental

constitutional protection; (2) whether, as a matter of law, the respondent’s culpability in that

proceeding would not warrant the imposition of discipline in California under applicable

California laws and rules; and (3) the degree of discipline to be imposed on the respondent in

California. (Bus. & Prof. Code, section 6049.1, subd. (b); In the Matter of Freydl (Review Dept.

2001) 4 Cal. State Bar Ct. Rptr. 349, 353.) The burden of proof with regard to the first two

issues is on the Respondent. (Section 6049.1, subd. (b).)

Facts Underlying Discipline of Respondent by U.S. District Court

On July 22, 2009, Respondent filed a complaint in the United States District Court for the

Southern District of California on behalf of Barbara Hubbard, Respondent’s mother, against

Plaza Bonita Shopping Center and a number of the shopping center’s tenants, alleging violations

of the Americans with Disabilities Act. The action was entitled Hubbard v. Plaza Bonita, L.P.,

Civ. No. 09-1581-JLS (WVG) (the Plaza Bonita suit). On or about that same day, Barbara

Hubbard (Mrs. Hubbard) signed an authorization for Disabled Advocacy Group3 to sign

settlement agreements and checks for her in the Plaza Bonita suit.

On November 11, 2009, Respondent met with Mrs. Hubbard in the hospital where she

was a patient. Mrs. Hubbard, who was terminally ill, told Respondent to settle the Plaza Bonita

case as quickly as possible and for whatever he could get. Respondent, who was leaving for a

brief trip to China, then left a voicemail instruction for his paralegal to send settlement proposals

to the defendants in the action. Written settlement proposals were sent on November 12, 2009.

3 At all times relevant hereto, Respondent was employed by Disabled Advocacy Group, a

professional law corporation wholly owned by Respondent’s son, also an attorney.4

On November 13, 2009 at 12:55 p.m., Mrs. Hubbard passed away. As of the time of Mrs.

Hubbard’s death, Respondent had secured settlements from all of the named defendants except

Hot Topic and Flava Enterprises (Flava).

On December 8, 2009, nearly a month after Mrs. Hubbard’s death, Respondent caused a

settlement agreement, purportedly signed by Mrs. Hubbard, to be faxed to counsel for Hot Topic.

The signature of "Barbara Hubbard" on the settlement agreement was not by her own hand.

Hot Topic was subsequently dismissed from the action on or about January 11, 2010.

On December 9, 2009, Respondent faxed a settlement agreement to Flava’s counsel with

Mrs. Hubbard’s purported signature without informing Flava’s counsel that Barbara Hubbard had

died and the signature on the document had not been written by her. Again, the signature of

"Barbara Hubbard" on the settlement agreement was not by her own hand. Instead it had been

signed by Respondent’s paralegal at Respondent’s instruction. (Ex. 1024, p. 3.)

On February 25, 2010, Magistrate Judge William Gallo conducted a settlement

conference with Respondent and defense counsel. At the February 25,2010 settlement

conference, Respondent informed the court for the first time that Mrs. Hubbard had passed away

on November 13, 2009.

After the conference, the Court directed Respondent to file a Notice of Death pertaining

to Plaintiff Mrs. Hubbard, pursuant to Federal Rule of Civil Procedure 25. On March 17, 2010,

Respondent filed the Notice of Death of Plaintiff.

On March 29, 2010, plaintiffs counsel filed a Motion to Substitute Mrs. Hubbard with

Respondent’s father, Lynn J. Hubbard, II. However, the father then died two days later, on

March 31, 2010, and Respondent promptly gave notice to the court and all remaining parties of

that fact.

On May 12, 2010, Respondent filed an Ex Parte Motion to Dismiss the Plaza Bonita

action as to the remaining defendant, Flava. On June 1, 2010, Flava filed an Opposition to the

Motion to Dismiss and requested that an Order To Show Cause(OSC) issue regarding possible

fabricated documents and an award of sanctions against Respondent.

On June 23, 2010, Flava’s motion for an OSC was granted.

On June 28, 2010, the U.S. District Court judge assigned to the Plaza Bonita case

referred the OSC to the magistrate judge, Judge Gallo, for resolution.

Beginning on October 12, 2010, the court held a series of hearings on the OSC, extending

well into 2011.

On June 13, 2011, Judge Gallo issued an order, finding that Respondent had submitted

proposed settlement documents in the matter, bearing purported signatures of "Barbara Hubbard"

signed after she had died by someone other than her. The court also found that Respondent,

recklessly and in bad faith, had mislead and concealed facts regarding his mother’s death and the

origin of the purported signatures from both the parties and the court. As a result, the court

ordered Respondent to pay sanctions, referred the matter to the court’s Standing Committee on

Discipline, and directed the court’s staff to report Respondent’s misconduct to the State Bar.

Respondent then filed objections to this order with the U.S. District Court judge assigned

to the matter. On November 29, 2011, the judge overruled those objections in a 12-page order.

On August 8, 2012, the Standing Committee on Discipline for the Southem District of

California ("Standing Committee") commenced a disciplinary action against Respondent for

alleged professional misconduct. On December 18, 2012, a bench trial was held, resulting in the

U.S. District Court making the following pertinent factual findings on February 4, 2013:

Donna Gin, counsel for Hot Topic, Inc., believed that BarbaraHubbard had in fact signed the settlement agreement that Mr. Hubbard’soffice transmitted on December 8, 2009.

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Ms. Gin had her client sign the settlement agreement transmittedon December 8 2009, unaware that Barbara Hubbard had died onNovember 13, 2009, and thus could not have signed the settlementagreement.

Had Ms. Gin known about Barbara Hubbard’s death - as a namedplaintiff in the underlying action, an obviously material fact - at any timeduring the negotiation of the settlement, she would have immediatelyhalted settlement discussions and notified her client of the development.

By transmitting the settlement agreement to Ms. Gin on December8, 2009, which was purportedly signed by Barbara Hubbard, Mr. Hubbardattempted to mislead opposing counsel into believing that BarbaraHubbard was alive. Foremost, during Mr. Hubbard’s testimony, whenasked what his intention was in approving the settlement agreements, hewas non-responsive. That is, he neither confirmed nor denied that it washis intention to mislead opposing counsel. Aside from his non-responsiveness, the Court finds that Mr. Hubbard’s testimony lackscredibility, primarily because of Mr. Hubbard’s pattern of inconsistentstatements as well as his inability to adequately explain his failure toinform opposing counsel of Barbara Hubbard’s death in a reasonablytimely manner.

For example, Mr. Hubbard testified that he did not inform UnitedStates Magistrate Judge William V. Gallo that Barbara Hubbard was"gravely ill" during the February 25, 2010 settlement conference, but in anobjection to an order to show cause ("OSC Objection") submitted toUnited States District Judge Janis L. Sammartino, he stated that "AttorneyHubbard told Magistrate Gallo on February 25, 2010, that he had heardthat his mother [Barbara Hubbard] was ’gravely ill.’" Similarly, during histestimony, Mr. Hubbard denied telling Judge Gallo that he had BarbaraHubbard sign numerous blank settlement agreements before her death, butin the same aforementioned objection, he stated that "Attomey Hubbardtold Magistrate Gallo on February 25, 2010, that his mother, Barbara, hadsigned numerous blanks [sic] settlement agreements, which the parties andcourt agree were never used. These are not exclusive examples of Mr.Hubbard’s inconsistencies.

At the February 25, 2010 settlement conference, Mr. Hubbard toldJudge Gallo that he had heard Barbara Hubbard was ill. Mr. Hubbard alsofailed to disclose that he had personally observed Barbara Hubbard’sdeteriorating condition just before her death.

By transmitting the settlement agreement to David Peters, counselfor Flava Enterprises, Inc. ("Flava") on December 9,2009, which waspurportedly signed by Barbara Hubbard, Mr. Hubbard attempted tomislead opposing counsel into believing that Barbara Hubbard was alive.

The Court makes this finding for the same reasons that it found above thatMr. Hubbard attempted to mislead counsel for Hot Topic.

At the February 25, 2010 settlement conference, Mr. Hubbardinformed Judge Gallo that he was considering Chris Kohler, one of Mr.Hubbard’s other clients, to substitute in as the plaintiff in place of BarbaraHubbard in the underlying action.

At the February 25, 2010 settlement conference, Mr. Hubbardintended to mislead the court that he had not observed firsthand BarbaraHubbard’s deteriorating condition in the days before her death. On thisfactual issue, Mr. Hubbard once again took contradictory positions. In theOSC Objection, Mr. Hubbard unequivocally admits that "AttorneyHubbard told Magistrate Gallo on February 25, 2010 that he had heard hismother was ’gravely ill."’ However, Mr. Hubbard testified that that neverhappened. Stating that Mr. Hubbard merely "had heard" Barbara Hubbardwas gravely ill strongly suggests that he did not personally observe herphysical condition, but rather heard about her physical condition through athird person.

Before the February 25, 2010 settlement conference, the decisionhad been made that Mr. Hubbard’s father, and not some other client of Mr.Hubbard’s, would assume the role of plaintiff in the underlying action atthe time of Barbara Hubbard’s death. In a declaration, Mr. Hubbard statedthat after being informed of Barbara Hubbard’s death, he called his father.At that time, Mr. Hubbard concluded that his father inherited BarbaraHubbard’s causes of action, and based on that conclusion, Mr. Hubbardasked his father "what he wanted to do." He informed his father thatprevious settlements needed to be finalized, and received instruction fromhis father to "go ahead and ’finish up’ the lawsuit." Mr. Hubbard stated inthe declaration that he and his father "agreed" that Mr. Hubbard wouldrepresent his father’s interest in the underlying action, and thereafter, Mr.Hubbard’s father went on to ratify and consent to Mr. Hubbard’s officesigning settlement agreements. The declaration does not mention ChrisKohler. This leads the Court to find that Mr. Hubbard decided that hisfather would assume the role of plaintiff in the underlying action monthsbefore the February 25, 2010 settlement conference.

At the February 25, 2010 settlement conference, Mr. Hubbardintended to mislead the court that no decision had been made as to whowould assume control of the underlying action following BarbaraHubbard’s death. Mr. Peters testified that Mr. Hubbard represented thateither Chris Kohler or Mr. Hubbard’s father would replace BarbaraHubbard in the underlying action during the settlement conference. Mr.Hubbard also testified that when Judge Gallo asked what his intentionswere regarding substituting the plaintiff in the underlying action, heanswered that he might substitute Chris Kohler. However, in light of the

factual findings above, Mr. Hubbard’s representations during thesettlement conference were misleading. Taking into account thediscussion and agreement between Mr. Hubbard and his father followingBarbara Hubbard’s death, there was no other evident purpose to mentionChris Kohler during the settlement conference other than to mislead thecourt and the other participants.

At the February 25, 2010 settlement conference, Mr. Hubbardrepresented that Barbara Hubbard had signed numerous blank settlementagreements before her death, but failed to disclose the "signed" settlementagreements sent to opposing counsel did not bear Barbara Hubbard’sactual signature, but rather someone else’s. Mr. Hubbard testified that hedid not tell Judge Gallo that Barbara Hubbard had signed numeroussettlement agreements before her death. Rather, he explained that he toldJudge Gallo that Barbara Hubbard had signed three documents before herdeath, two of which involved other cases and the other involved a bankingnatter. However, in the OSC Objection, Mr. Hubbard unequivocally tookthe position that he "told Magistrate Gallo on February 25, 2010, that hismother, Barbara, had signed numerous blanks [sic] settlement agreements,which the parties and court agree were never used." Furthermore, Mr.Peters and Ms. Gin both testified that they had no reason to suspect thatthe signatures on the settlement agreements were not actually BarbaraHubbard’s, and that they believed that the signatures on the settlementagreements were actually Barbara Hubbard’s.

In sum, the Court finds that Mr. Hubbard represented that BarbaraHubbard had signed numerous blank settlement agreements before herdeath. Additionally, the Court finds that Mr. Hubbard failed to disclose tothe court, Mr. Peters, and Ms. Gin the material fact that the signature inthe settlement agreements did not bear Barbara Hubbard’s actual signatureprior to or at the February 25, 2010 settlement conference.

Mr. Hubbard intended to mislead the court about who had signedthe December 9, 2009 settlement agreement faxed to Mr. Peters. Mr.Hubbard testified that the fee agreement with Barbara Hubbard authorizedhim and possibly his firm to simulate Barbara Hubbard’s signature. Adeclaration of Mr. Hubbard’s also states that he received authorizationfrom his father shortly after Barbara Hubbard’s death to sign settlementagreements on Barbara Hubbard s behalf. However, as discussed above,Mr. Hubbard nonetheless represented to the court that Barbara Hubbardactually signed numerous blank settlement agreements before her death.The totality of the evidence compels the Court to find that Mr. Hubbardintended to mislead the court as well as the other parties involved in theunderlying action as to who actually signed the settlement agreements,including the one faxed to Mr. Peters on December 9, 2009.

(Ex. 6, pp. 3-7 [citations to record omitted].)

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After making the above factual findings, the court concluded that Respondent’s conduct

violated, inter alia, the California Rules of Professional Conduct, rules 5-200 and 5-220, and

Business and Professions Code sections 6106;4 6068, subdivision (b); and 6068, subdivision (d).

As a result of those findings, the court issued a judgment suspending Respondent for one year

from the practice of law in that court.

Discussion

No contention is made by Respondent in this proceeding that the disciplinary proceedings

and resulting decision by the U.S. District Court, discussed above, lacked due process. Instead,

the only issues before this court are (1) whether, as a matter of law, Respondent’s culpability in

that proceeding would not warrant the imposition of discipline in California under applicable

California laws and rules; and (2) the degree of discipline to be imposed on the respondent in

California.

Respondent contends that his culpability in that proceeding would not warrant the

imposition of discipline under applicable California laws and rules. This court disagrees.

Instead, this court concludes, as did the U.S. District Court, that Respondent’s conduct violated,

at a minimum, the prohibitions of section 6106; section 6068, subdivision (d); and rules 5-200

and 5-220.

With regard to the degree of discipline to be imposed, that issue will be discussed below

in conjunction with the other two cases decided herein.

Case No. 13-O-17118 (Vogel Matter)

On January 8, 2013, Respondent and a female companion conducted an inspection of the

McDonald’s facility in Bellflower, California. There, Respondent observed and photographed

4 The court’s decision accurately quotes section 6106, but mistakenly refers to it as section

"6101 "m¯

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aspects of the facility which violated regulations issued under the Americans with Disabilities

Act of 1990 (42 U.S.C. §§ 12101 et seq.). While there, the female companion purchased a soft

drink at the facility, for which she secured a receipt. Respondent subsequently returned that

receipt to his office in Northern California, where it was filed at some point by his staff in the file

opened in what became the Vogel matter.

On January 23, 2013, Respondent filed a complaint on behalf of Martin Vogel in the

United States District Court for the Central District of California, entitled Vogel v. Tulaphorn,

Inc., dba McDonald’s #10746; McDonald’s Corporation, case No. CV 13-00464 (the Vogel

matter). The complaint alleged, inter alia, that Vogel, a disabled person, had visited the

McDonald’s facility in Bellflower, operated by or on behalf of the defendants, and that he had

there encountered barriers to his use and enjoyment of the facility that violated the Americans

with Disabilities Act. The complaint did not allege the date that Vogel had visited the facility.

Unbeknownst to Respondent at the time the Vogel matter was filed, the Bellflower

McDonald’s facility maintained a videotape record of persons patronizing the facility. After the

Vogel matter litigation was begun, counsel for defendant Tulaphorn sought information from

Respondent’s office on April 9, 2013, regarding "any documents and/or other documents

supporting Mr. Vogel’s claims that he visited" the Bellflower facility. (Ex. 1040.) In response,

on April 10, 2013, Tulaphorn’s counsel was provided with a copy of the January 8, 2013 receipt

and copies of the photographs taken by Respondent on that same date. The accompanying email

message indicated these documents were "for the visit" to that facility [emphasis added]. There

was no indication in the email that Vogel had made any other visits to the facility. (Ex. 1041.)

Although Vogel subsequently testified in deposition that he had kept a receipt from his visit to

McDonald’s on the date when he claimed he had encountered problems there with the facility, no

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receipt from any visit by anyone prior to the filing of the lawsuit, other than the January 8, 2013

receipt, was ever produced by Respondent or Vogel.

The produced receipt showed a purchase at the facility on January 8, 2013, at 12:22 p.m.

When defendant’s counsel viewed the videotape record for that date, the videotape showed that it

was Respondent and his companion who had been at the facility that day, not Vogel.

Defendant’s counsel did not immediately notify Respondent of this videotape evidence.

Instead, when Respondent sought discovery of all photographs and videotapes, defendant’s

counsel made numerous objections to the request and produced nothing.

On May 30, 2013, Vogel’s deposition was noticed by Tulaphom’s counsel. That

deposition was eventually taken on June 25,2013. During the deposition, Vogel authenticated

the January 8, 2013 receipt as being from his own visit to McDonald’s on January 8, 2013, and

he stated that he had given the receipt to his attomey. He also testified that he had taken the

January 8, 2013 photographs of the facility. Although Vogel was never specifically asked during

his deposition whether he had ever visited that McDonald’s prior to January 8, 2013, Vogel

referred in passing to the January 8th visit as his "first visit" there during the course of describing

his other visits to the facility. (Ex. 12, p. 656 [Deposition, p. 64, lines 15-16.].)

The inaccuracy of Vogel’s deposition testimony is apparent merely by looking at the

photographs. While Vogel testified that he was alone when he visited McDonald’s on January 8,

2013, one of the January 8, 2013 photographs, falsely authenticated by Vogel, shows a portion

Respondent’s female companion’s foot. More obvious, while Vogel testified during the

deposition that he did not take any measurements of the slope of the parking lot on January 8,

2013, because he did not have a "Smarttool" level with him that day, several of the photographs

authenticated by Vogel as being taken by him on January 8, 2013, showed measurements of the

parking lot’s slope being taken that day with a Smarttool level.

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On August 5, 2013, Respondent filed a motion for summary judgment on behalf of Vogel

in the case. Attached to that motion was a declaration from Vogel, stating that he had visited the

facility on January 8, 2013, and authenticating the January 8, 2013 receipt as resulting from his

visit that day. (Ex. 1046.)

Also on August 5, 2013, Respondent’s office executed a supplemental response to a

production of documents, in which it was again represented both that Vogel had visited the

Bellflower McDonald’s on January 8, 2013, and that the receipt bearing that date had been

issued there to him. (Ex. 1048, p. 3.)

On August 8, 2013, Tulaphorn’s counsel gave Respondent written notice oft he fact that

there was videotape evidence that Vogel had not been at the McDonald’s on January 8, 2013,

and that the January 8, 2013, had been secured by Respondent, rather than Vogel.

On August 12, 2013, Respondent acknowledged that the January 8, 2013, had resulted

from his visit to McDonald’s, requested a copy of any videotapes, stated that Vogel’s prior

deposition answers would be amended, and informed Tulaphorn’s counsel that the existing

summary judgment would be withdraw, modified, and re-filed. On that same day, Respondent

formally withdrew the pending summary judgment motion.

On the next day, August 13, 2013, Respondent filed an amended motion for summary

judgment.

On August 14, 2013, Vogel, aided by Respondent’s office, made more than 100 changes

to the answers given during his prior deposition. These changes so drastically modified his prior

responses as to render his amended answers meaningless and/or non-responsive.

On September 5, 2013, defendant Tulaphorn filed a motion for terminating sanctions and

a request for an award of attorney’s fees. It subsequently also sought to extend its time to file an

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opposition to the pending summary judgment motion, but that request was successfully opposed

by Respondent.

On October 2, 2013, the court issued an order denying Vogel’s motion for summary

judgment, concluding that it was unclear and disputed whether Vogel had visited the

McDonald’s prior to the filing of his lawsuit.

On November 4, 2013, after position papers and supporting documents had been filed by

the parties, a hearing on the motion for terminating sanctions and attomey’s fees was held. On

the following day, November 5,2013, the court granted the motion for terminating sanctions and

denied without prejudice the request for attorney’s fees. In granting the request for terminating

sanctions, the court, in a 23-page order, concluded that both Vogel and his counsel had acted in

bad faith and had participated in a pattern of deception throughout the case. It also expressly

discussed and rejected Respondent’s contention that the many misrepresentations made during

the case were merely the result of an honest mistake. (Ex. 12, pp. 1684-1706.)

On November 18, 2013, defendant Tulaphom filed a new motion for an award of

attorney’s fees, which Respondent then opposed.

On January 30, 2014, the U.S. District Court issued an order awarding defendant

Tulaphom attorney’s fees of $68,239.22,5 recoverable against Vogel and Disabled Advocacy

Group, jointly and severally. (Ex. 12, p. 1979.) The award was based on Vogel and his

counsel’s "bad faith litigation tactics."

///

///

///

///

5 This award was subsequently increased by an additional $7,097.50. (Ex. 12, p. 2077.)

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Count 1 - Section 6068, subd. (d) [Seeking to Mislead Jud~elCount 2 - Section 6106 [Moral Turpitude]

Section 6068, subdivision (d), makes it a duty of an attorney never to seek to mislead a

judge by an artifice or false statement of fact or law. In Count 1, the State Bar alleges that

Respondent made false or misleading statements in the complaint and the initial summary

judgment motion in the Vogel lawsuit by stating that Vogel visited the Bellflower McDonald’s

restaurant on January 8, 2013, when, in fact, Vogel had not; and that Respondent knew these

statements were false and thereby sought to mislead the judge or judicial officer by an artifice or

false statement of fact or law, in willful violation of section 6068, subdivision (d).

Section 6106 prohibits an attorney from engaging in conduct involving moral turpitude,

dishonesty or corruption. In Count 2, the State Bar alleges that Respondent made false or

misleading statements in the complaint and the initial summary judgment motion in the Vogel

lawsuit by stating that Vogel visited the Bellflower McDonald’s restaurant on January 8, 2013,

when, in fact, Vogel had not; and that Respondent knew or was grossly negligent in not knowing

these statement were false, and thereby committed acts involving moral turpitude, dishonesty or

corruption in willful violation of Business and Professions Code, section 6106.

Counts 1 and 2 are duplicative of one another. If this court finds culpability for either,

the other is dismissed as duplicative. (See In the Matter of Maloney and Virsik (Review Dept.

2005) 4 Cal. State Bar Ct. Rptr. 774, 786-787 [dismissing section 6068, subd. (d) count on

finding of violation of section 6106]; In the Matter of Chesnut (Review Dept. 2000) 4 Cal. State

Bar Ct. Rptr. 166, 175 [dismissing section 6106 count on finding of violation of section 6068,

subd. (d)].)

In assessing whether Respondent’s conduct constituted an act of moral turpitude in

violation of section 6106, it is well established that acts of moral turpitude include an attorney’s

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false or misleading statements to a court or tribunal. (In the Matter of Maloney and Virsik,

supra, 4 Cal. State Bar Ct. Rptr. at p. 786; Bach v. State Bar (1987) 43 Cal.3d 848, 855; Chefsky

v. State Bar (1984) 36 Cal.3d 116, 124.) The actual intent to deceive is not necessary and a

finding of gross negligence in creating a false impression is sufficient for violation of section

6106. (In the Matter of Moriarty (Review Dept. 1999) 4 Cal. State Bar Ct. Rptr. 9, 15; In the

Matter of Wyrick (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 83, 90-91.) Acts of moral

turpitude include concealment as well as affirmative misrepresentations. (Grove v. State Bar

(1965) 63 Cal.2d 312, 315.) Indeed, " no distinction can.., be drawn among concealment, half-

truth, and false statement of fact. [Citations omitted]" (In the Matter of Chesnut, supra, 4 Cal.

State Bar Ct. Rptr. at p. 174.) Also, it is not necessary that the respondent actually succeeded in

perpetrating a fraud on the court. (See, e.g., Bach v. State Bar, supra, 43 Cal.3d 848, 852-853,

855.)

Although the NDC here alleges that Respondent made a misrepresentations in the

complaint that Vogel visited the Bellflower McDonald’s on January 8, 2013, the complaint

includes no such allegation. Therefore, that portion of Count 1 is unsupported by clear and

convincing evidence.

In contrast, the summary judgment motion does contain numerous factual assertions that

Vogel visited the McDonald’s facility on January 8, 2013, and that this visit was documented by

the January 8, 2013 receipt. These representations were false.

The U.S. District Court, in its November 5, 2013 order issuing terminating sanctions,

concluded that these misrepresentations to the court by Respondent were acts of "mendacity."

After a lengthy written analysis, the court expressly rejected Respondent’s efforts to characterize

those misrepresentations as being the result of an honest mistake; instead, the court concluded,

they reflected an intent to deceive and acts of bad faith. For all of the reasons given by the court

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in that analysis, this court also concludes that Respondent’s conduct constituted an act of moral

turpitude and a willful violation of section 6106.6

Count 3 - Section 6068~ subd. (o)(3) [Failure to Report Judicial Sanctions[

In this count, the State Bar alleges that Respondent failed to report timely the federal

court sanctions order issued on November 5,2013, in willful violation of section 6068,

subdivision (0)(3). Section 6068, subdivision (o)(3), requires an attorney to report to the State

Bar, in writing, within 30 days of the time the attorney has knowledge of"the imposition of

judicial sanctions against the attorney, except for sanctions for failure to make discovery or

monetary sanctions of less than one thousand dollars ($1,000)."

The evidence submitted by the State Bar fails to provide clear and convincing proof of

this alleged violation. The court’s order makes expressly clear that its sanction order is against

Vogel’s "Counsel," a term expressly defined by the court at the beginning of its order to be

"Disabled Advocacy Group." (Ex. 12, p. 1684.) Disabled Advocacy Group is a professional law

corporation wholly owned by Respondent’s son. Throughout the sanctions order, the court

referred to and relied on actions by various people employed by Disabled Advocacy Group as

being actions by "Counsel," frequently identifying in footnotes the different people who were

performing the particular act. Because many of those actions were by individuals other than

Respondent, it cannot be concluded, either factually or legally, that the order of sanctions

directed at Disabled Advocacy Group was issued against Respondent personally.

Situations where an award of sanctions is issued against a law partnership or law

corporation are addressed by subdivision (o)(8) of section 6068, which provides: "As used in this

subdivision, ’against the attorney’ includes claims and proceedings against any firm of attorneys

for the practice of law in which the attomey was a partner at the time of the conduct complained

6 Having concluded that Respondent violated section 6106, Count 1 is dismissed as duplicative.

17

of and any law corporation in which the attomey was a shareholder at the time of the conduct

complained of unless the matter has to the attomey’s knowledge already been reported by the law

firm or corporation." Because Respondent was neither a partner in Disabled Advocacy Group

nor a shareholder of it, the statutory duty to report the sanctions ordered against that firm fell on

others.

This count is dismissed with prejudice.

Count 4 - Section 6068, subd. (i) [Failure to Cooperate in Disciplinary lnvesti~ationl

Section 6068, subdivision (i), subject to constitutional and statutory privileges, requires

attomeys to cooperate and participate in any disciplinary investigation or other regulatory or

disciplinary proceeding pending against that attorney. In this count, the State Bar alleges that

Respondent willfully violated this obligation.

In support of that allegation, the State Bar presented evidence that a letter was sent by a

State Bar investigator to Respondent on December 11, 2013, indicating that a complaint had

been forwarded to the State Bar about the Vogel matter and asking for a written response on or

before December 18, 2013. Respondent retained outside counsel experienced in handling State

Bar matters to handle this investigation on his behalf and testified credibly that he understood the

request for information had been handled by his retained counsel. In fact, documents from the

State Bar’s investigation file show that this retained outside counsel contacted the investigator on

Respondent’s behalf on December 18, 2013, prior to the deadline for a response elapsing, and

requested an extension of time to provide a response. That extension was granted on December

Thereafter, a second extension of time was requested by this defense counsel and23, 2013.

given.

In February, 2014, Respondent’s attorney wrote a follow-up email to the investigator,

apologizing for failing to provide the written response by the deadline that had now passed and

18

explaining that the failure resulted from the attorney’s being unexpectedly required to undergo

surgery. "This is entirely my fault," wrote Respondent’s attorney, "Not the client’s."

Subsequent documents in the State Bar’s file make clear that this defense attorney then

began by at least early March 2014 to deal with the prosecuting attorney assigned to the three

pending matters and show that he was providing requested information to this attorney. (See,

e.g., Ex. 13, p. 16.) There was no evidence offered at trial of any follow-up letter or

communication to Respondent from either the investigator or the prosecuting attorney, notifying

Respondent of any failure by either Respondent or his attorney to reply to the investigator’s

earlier letter or otherwise complaining of any failure by either Respondent or his retained counsel

to cooperate in the matter. At trial, there was also no testimony by the State Bar’s attorney with

whom the retained defense counsel had dealt that the retained attorney had not provided all of the

information that had been requested by the State Bar. In contrast, a document in the State Bar’s

file indicates that this attorney was informed early on the morning of May 8, 2014, that no written

response to the investigator’s prior letter had been received by the investigator. (Ex. 13, p. 18.)

Nonetheless, in a letter written to defense counsel that same day, this attorney notified defense

counsel that the State Bar’s investigation of case No. 13-0-17119 had been completed and that

the State Bar, absent a settlement, intended to go forward with an NDC alleging violations of

sections 6106; 6068, subdivision (d); and 6068, subdivision (o)(3). Significantly, there was no

indication in this letter of any belief by that attorney, who had been dealing directly with

Respondent’s defense counsel, of any basis for pursuing a claim on non-cooperation by

Respondent under section 6068, subdivision (i).

At the conclusion of the trial of this matter, this court asked counsel for the State Bar to

provide this court with any case authority finding culpability for failure to cooperate in a

situation where the respondent had timely hired an attorney to handle the inquiry from the State

19

Bar, the State Bar had been notified of that fact prior to the deadline for the response elapsing,

and the hired attorney had subsequently failed to provide a written response to the State Bar by

its stated deadline. In its closing brief, the State Bar pointed to authority supporting a finding of

culpability in such a situation. (Cf. In the Matter of Hindin (Review Dept. 1997) 3 Cal. State Bar

Ct. Rptr. 657, 677-678,684-685 [no culpability for failure to respond to investigator letters

where respondent, within six weeks after letters, had indicated to deputy trial counsel his

"willingness to cooperate through his counsel in any and all matters raised by the State Bar"]; In

the Matter of Frazier (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 676, 699 [court declined to

find that the respondent had failed to cooperate with the State Bar when the respondent’s

inaction was based on the advice of counsel].)

This count is dismissed with prejudice.

Count 5 - Rule 1-300(A) [Aidin~ the Unauthorized Practice of Lawl

As previously noted, toward the end of its case, the State Bar sought and received leave

to amend its NDC to include a count alleging that Respondent violated rule 1-300(A) by

allowing paralegal, Kaina Schukei (Schukei), to draft, sign, and file complaints without attorney

review, including but not limited to the complaint in the Vogel matter.

Rule 1-300(A) of the Rules of Professional Conduct provides, "A member shall not aid

any person or entity in the unauthorized practice of law." Section 6125 of the Business and

Professions Code provides, "No person shall practice law in California unless the person is an

active member of the State Bar."

The State Bar failed to present clear and convincing evidence supporting this charge.

The State Bar’s problems with proving this count begin with its allegation in Count 1,

above, that it was Respondent who had made misrepresentations in the complaint. In support of

20

that allegation, it called Respondent as a witness and had him confirm that he had signed the

complaint. This directly contradicts its allegation in Count 5.

Moreover, the State Bar placed in evidence the order of the U.S. District Court in the

Vogel matter, issuing terminating sanctions against Vogel because of bad faith litigation tactics.

As part of that order, the federal court specifically found that it was Respondent who had signed

the complaint. (See Ex. 12, p. 1684, fn. 1 ["Lynn Hubbard III, one of the Disabled Advocacy

Group’s senior attorneys, signed the Complaint."].) This finding subsequently became the very

first fact noted by the court in explaining its conclusion that sanctions were appropriate:

Despite Counsel’s familiarity with the requirements of Article III standing and thefact-sensitive nature of proving standing in ADA litigation [footnote appended]7,

Plaintiff’s Complaint is surprisingly bereft of any allegation as to when Plaintiffspecifically visited the restaurant."

(See Ex. 12, p. 1692.)

In the State Bar’s closing brief in this matter, it emphasizes that "The factual findings by

the [ Vogel] court are entitled to a presumption of validity since they are supported by both

substantial and clear and convincing evidence. [citing Maltaman v. State Bar (1987) 43 Cal.3d

924, 947]." (State Bar Closing Brief, p. 6, lines 4-7.) For this court to disregard and dispute one

of those findings for the purpose of this one count would be to violate that admonition.

Further, the testimony by Schukei was sufficiently vague and non-specific as to the

degree of supervision of her work by the attorneys at her office that it falls short of providing

clear and convincing evidence that she had been allowed to practice law. She indicated at

several times that the work she did was at the instruction of Respondent and other attorneys in

the office. Whether the information she provides in the blanks of the form ADA complaint are

merely factual and clerical or, instead, reflect legal analysis or judgment is far from clear.

7 The footnote reads: "Counsel has litigated over 200 disability access lawsuits in the Central

District of California alone."21

Finally, the fact that her testimony was contradicted by the State Bar’s own evidence on the

simple issue of who signed the Vogel complaint greatly reduces the weight this court affords her

testimony. Given her obvious loyalty to Respondent, her testimony, given prior to the requested

amendment adding this count, was more likely a misguided effort on her part to divert part of the

responsibility for the alleged mishandling of the Vogel complaint from him to herself.

This count is dismissed with prejudice.

A~,ravating Circumstances

The State Bar bears the burden of proving aggravating circumstances by clear and

convincing evidence. (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof.

Misconduct, std. 1.5.) s The court finds the following with respect to alleged aggravating factors.

Multiple Acts of Misconduct

Respondent has been found culpable of multiple acts of misconduct. The existence of

such multiple acts of misconduct is an aggravating circumstance. (Std. 1.5(b).)

Significant Harm

Respondent’s misconduct significantly harmed the opposing party in both the Hubbard

and Vogel matters and also harmed Respondent’s client9 and the court in the Vogel matter. This

is an aggravating factor. (Std. 1.5(f).)

Mitigating Circumstances

Respondent bears the burden of proving mitigating circumstances by clear and

convincing evidence. (Std. 1.6.) The court finds the following with respect to alleged mitigating

factors.

8 All further references to standard(s) or std. are to this source.9 In making this finding, the court is not unmindful of the federal court’s finding that Vogel was a

willing and knowledgeable participant in the bad faith tactics and efforts to deceive.22

No Prior Discipline

Respondent had practiced law in California for more than 32 years prior to his earliest

misconduct set forth above. During that lengthy timespan, Respondent had no prior record of

discipline. Respondent’s lengthy tenure of discipline-free practice is entitled to significant

weight in mitigation even though his misconduct here was serious. (Std. 1.6(a); In the Matter of

Stamper (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 96, 106, fn. 13 [noting that the Supreme

Court has repeatedly applied former standard 1.2(e)(1) in cases involving serious misconduct and

citing Rodgers v. State Bar (1989) 48 Cal.3d 300, 317; Cooper ~. State Bar (1987) 43 Cal.3d

1016, 1029].)

Cooperation

Respondent cooperated with the State Bar by entering into a stipulation related to the

cases at issue. Although the stipulated facts were limited and not difficult to prove, Respondent

admitted culpability only at trial and only for one count. Nonetheless, the stipulation was

relevant, covered admissibility of many of the exhibits, and assisted the State Bar’s prosecution

of the case. The court therefore assigns mitigation, albeit limited, for that cooperation. (Std.

1.6(e);In the Matter of Field (Review Dept. 2010) 5 Cal. State Bar Ct. Rptr. 171,185.)

Character Evidence

Respondent presented good character testimony from a number of individuals, including

several clients and seven attomeys (three of who regularly oppose Respondent in matters), for

which Respondent is entitled to mitigation credit. (In the Matter of Brown (Review Dept. 1993)

2 Cal. State Bar Ct. Rptr. 309, 319 [testimony from members of bench and bar entitled to serious

consideration because judges and attorneys have "strong interest in maintaining the honest

administration ofjustice"].)

23

DISCUSSION

The purpose of State Bar disciplinary proceedings is not to punish the attorney but to

protect the public, the courts, and the legal profession; to maintain the highest possible

professional standards for attorneys; and to preserve public confidence in the legal profession.

(Std. 1.1; Chadwick v. State Bar (1989) 49 Cal.3d 103, 111.)

In determining the appropriate level of discipline, this court looks first to the standards

for guidance. ( Drociak v. State Bar (1991) 52 Cal.3d 1085, 1090; In the Matter of Koehler

(Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 615,628.) The court then looks to the decisional

law. (Snyder v. State Bar (1990) 49 Cal.3d 1302, 1310-1311; In the Matter of Taylor (Review

Dept. 1991) 1 Cal. State Bar Ct. Rptr. 563,580.) As the Review Department noted more than

two decades ago in In the Matter of Bouyer (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 404,

419, even though the standards are not to be applied in a talismanic fashion, they are to be

followed unless there is a compelling reason that justifies not doing so. (Accord, In re Silverton

(2005) 36 Cal.4th 81, 91; Aronin v. State Bar (1990) 52 Cal.3d 276, 291.) Ultimately, in

determining the appropriate level of discipline, each case must be decided on its own facts after a

balanced consideration of all relevant factors. (Connor v. State Bar (1990) 50 Cal.3d 1047,

1059; Gary v. State Bar (1988) 44 Cal.3d 820, 828; In the Matter of Oheb (Review Dept. 2006) 4

Cal. State Bar Ct. Rptr. 920, 940.)

Standard 1.7(a) provides that, when two or more acts of misconduct are found in a single

disciplinary proceeding and different sanctions are prescribed for those acts, the recommended

sanction is to be the most severe of the different sanctions.

In the present proceeding, the most severe sanction for respondent’s misconduct is found

in standard 2.7, which provides: "Disbarment or actual suspension is appropriate for an act of

moral turpitude, dishonesty, fraud, corruption, or concealment of a material fact. The degree of

24

sanction depends on the magnitude of the act of misconduct and the extent to which the

misconduct harmed or misled the victim and related to the member’s practice of law."

This court concludes that discipline including a period of one year of actual suspension

from the practice of law is both necessary and appropriate in the case and sufficient to serve the

purposes of this disciplinary process. It is also consistent with the standards and prior precedents

goveming this proceeding.

While the length of the recommended actual suspension is equivalent to that imposed by

the U.S. District Court in the Plaza Bonita matter, which was based solely on Respondent’s

misconduct in that matter, that disciplinary decision did not take into consideration any the

mitigation factors, as this court is required to do, and it is not binding on this court.

There are several published disciplinary cases involving misconduct comparable to

Respondent’s misconduct in the Plaza Bonita matter. See, e.g., Hallinan v. State Bar (1948) 33

Cal.2d 246 [30-day actual suspension imposed where attorney falsely led opposing counsel to

believe that client had personally signed the settlement papers; had also obtained an

acknowledgment of the signature in an improper manner]; Aronin v. State Bar (1990) 52 Cal.3d

276 [9 months actual suspension for multiple acts of misconduct, including violation of section

6106 by improperly signing client’s name to verifications]; and In the Matter of Jeffers (Review

Dept. 1994) 3 Cal. State Bar Ct. Rptr. 211 [stayed suspension with no actual suspension where

attorney concealed the fact that his client had died from judge, but not opposing counsel, at

settlement conference]. While the discipline imposed in those cases is less than that imposed by

the federal court here and that recommended by this court, the misrepresentations and

misconduct by Respondent in the Plaza Bonita matter was more extensive than that involved in

those matters. The recommendation of discipline by this court is, of course, also based on

25

Respondent’s additional and extensive misconduct in the Vogel matter, which took place after he

had previously been disciplined in the Plaza Bonita matter.

The State Bar contends that Respondent should be disbarred for his misconduct in the

three matters addressed in this proceeding. That request is unsupported by any citation to any

case supporting such an outcome here. It also is, of course, based on its assumption that this

court will find culpability on all counts. Such is not the case.

This court does not conclude that disbarment of Respondent is necessary or appropriate

to protect the public, the courts, or the profession. Respondent has practiced law for well more

than 30 years. In all of that time, there is no evidence of any complaint against him by any

client. That practice that has included thousands of lawsuits. Even in this proceeding,

Respondent’s impacted client, Vogel, testified on his behalf. While there have now been two

cases where Respondent has been found culpable of significant misconduct during his 30+ years

of practice, it must be expected that Respondent will take to heart the lessons underlying the

imposition here of substantial discipline here and that he will fastidiously avoid any future

violations of his professional obligations.

This court is not unaware, and received evidence during the course of this case, that

Respondent’s practice of frequently suing businesses for violations of the Americans with

Disability Act (ADA) is controversial in some quarters. That fact, however, is not a reason to

impose or enhance the discipline in this matter. Instead, the evidence is also clear and

convincing that such lawsuits, from the perspective of disabled individuals, are critical to having

businesses comply with the ADA and are essential to disabled individuals being able to live their

lives without the discomforts, impediments, and dangers that are prohibited by the act. In that

regard, the evidence was uncontradicted that, while Respondent receives a portion of the

26

economic proceeds resulting from his filing of such lawsuits, he routinely does not settle those

suits without requiring the offending defendant to take remedial measures to comply with the act.

RECOMMENDED DISCIPLINE

Actual Suspension

For all of the above reasons, it is recommended that Lynn Hubbard, III, State Bar

number 69773, be suspended from the practice of law for two years; that execution of that

suspension be stayed; and that Respondent be placed on probation for three years, with the

following conditions:

1. Respondent must be actually suspended from the practice of law for the first one year of

probation.

2. Respondent must comply with the provisions of the State Bar Act, the Rules of

Professional Conduct, and all the conditions of this probation.

3. Respondent must maintain, with the State Bar’s Membership Records Office and the

State Bar’s Office of Probation, his current office address and telephone number or, if no

office is maintained, an address to be used for State Bar purposes. (Bus. & Prof. Code,

§ 6002.1, subd. (a).) Respondent must also maintain, with the State Bar’s Membership

Records Office and the State Bar’s Office of Probation, his current home address and

telephone number. (See Bus. & Prof. Code, § 6002.1, subd. (a)(5).) Respondent’s home

address and telephone number will not be made available to the general public. (Bus. &

Prof. Code, § 6002.1, subd. (d).) Respondent must notify the Membership Records

Office and the Office of Probation of any change in any of this information no later than

10 days after the change.

4. Within thirty (30) days after the effective date of discipline, Respondent must contact the

Office of Probation and schedule a meeting with Respondent’s assigned probation deputy

27

to discuss these terms and conditions of probation and must meet with the probation

deputy either in-person or by telephone. During the period of probation, Respondent

must promptly meet with the probation deputy as directed and upon request.

Respondent must report, in writing, to the State Bar’s Office of Probation no later than

January 10, April 10, July 10 and October 10 of each year or part thereof in which

Respondent is on probation (reporting dates).1° However, if Respondent’s probation

begins less than 30 days before a reporting date, Respondent may submit the first report

no later than the second reporting date after the beginning of his probation. In each

report, Respondent must state that it covers the preceding calendar quarter or applicable

portion thereof and certify by affidavit or under penalty of perjury under the laws of the

State of Califomia as follows:

(a) in the first report, whether Respondent has complied with all the provisions of

the State Bar Act, the Rules of Professional Conduct, and all other conditions of

probation since the beginning of probation; and

(b) in each subsequent report, whether Respondent has complied with all the

provisions of the State Bar Act, the Rules of Professional Conduct, and all other

conditions of probation during that period.

During the last 20 days of this probation, Respondent must submit a final report covering

any period of probation remaining after and not covered by the last quarterly report

required under this probation condition. In this final report, Respondent must certify to

the matters set forth in subparagraph (b) of this probation condition by affidavit or under

penalty of perjury under the laws of the State of California.

10 TO comply with this requirement, the required report, duly completed, signed and dated, must

be received by the Office of Probation on or before the reporting deadline.28

6. Subject to the proper or good faith assertion of any applicable privilege, Respondent must

fully, promptly, and truthfully answer any inquiries of the State Bar’s Office of Probation

that are directed to Respondent, whether orally or in writing, relating to whether

Respondent is complying or has complied with the conditions of this probation.

7. Within one year after the effective date of the Supreme Court order in this matter,

Respondent must attend and satisfactorily complete the State Bar’s Ethics School and

provide satisfactory proof of such completion to the State Bar’s Office of Probation. This

condition of probation is separate and apart from Respondent’s California Minimum

Continuing Legal Education (MCLE) requirements; accordingly, Respondent is ordered

not to claim any MCLE credit for attending and completing this course. (Rules Proc. of

State Bar, rule 3201.)

8. Respondent’s probation will commence on the effective date of the Supreme Court order

imposing discipline in this matter.

At the termination of the probation period, if Respondent has complied with all of the

terms of his probation, the period of stayed suspension will be satisfied and that suspension will

be terminated.

Multistate Professional Responsibilit~ Examination

It is further recommended that Respondent be ordered to take and pass the Multistate

Professional Responsibility Examination within one year after the effective date of the Supreme

Court order imposing discipline in this matter, or during the period of his actual suspension,

whichever is longer, and provide satisfactory proof of such passage to the State Bar’s Office of

Probation in Los Angeles within the same period. (See Segretti v. State Bar (1976) 15 Cal.3d

878, 891, fn. 8.) Failure to do so may result in an automatic suspension. (Cal. Rules of Court,

rule 9.10(b).)

29

Rule 9.20

The court recommends that Respondent be ordered to comply with rule 9.20 of the

California Rules of Court and perform the acts specified in subdivisions (a) and (c) of that rule

within 30 and 40 calendar days, respectively, after the effective date of the Supreme Court order

in this matter.~ ~

Costs

It is further recommended that costs be awarded to the State Bar in accordance with

Business and Professions Code section 6086.10 and that such costs be enforceable both as

provided in section 6140.7 and as a money judgment.

Dated: February I_~__~, 2015 DONALD F. MILESJudge of the State Bar Court

11 Respondent is required to file a rule 9.20(c) affidavit even if he has no clients to notify on the

date the Supreme Court files its order in this proceeding. (Powers v. State Bar (1988) 44 Cal.3d337, 341 .) In addition to being punished as a crime or contempt, an attorney’s failure to complywith rule 9.20 is also, inter alia, cause for disbarment, suspension, revocation of any pendingdisciplinary probation, and denial of an application for reinstatement after disbarment. (Cal.Rules of Court, rule 9.20(d).)

30

CERTIFICATE OF SERVICE

[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., § 1013a(4)]

I am a Case Administrator of the State Bar Court of California. I am over the age of eighteenand not a party to the within proceeding. Pursuant to standard court practice, in the City andCounty of Los Angeles, on February 18, 2015, I deposited a true copy of the followingdocument(s):

DECISION

in a sealed envelope for collection and mailing on that date as follows:

by first-class mail, with postage thereon fully prepaid, through the United States PostalService at Los Angeles, California, addressed as follows:

SAMUEL C. BELLICINIFISHKIN & SLATTER, LLP1575 TREAT BLVDSTE 215WALNUT CREEK, CA 94598

by interoffice mail through a facility regularly maintained by the State Bar of Californiaaddressed as follows:

ERICA DENNINGS, Enforcement, San Francisco

I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, onFebruary 18, 2015.

Rbse~. LuthiCase AdministratorState Bar Court